HARI RAM Vs. SIYA RAM

JUDGEMENT

(1.) THIS second appeal arises out of a suit for permanent in junction. The brief facts are these: The plaintiffs claimed to be the bhumidhars in possession of the grove shikmi plot No. 1. It was alleged that the plot was acquired by compromise in Suit No. 147/1378 pending in the revenue court. In the said plot the plaintiffs had raised a Bandh about 16 or 17 years back for the protection of the plots and its trees from the water of the pond which was situated to the west of the plot. The bandh was constructed with the consent of the inhabitants of the village and it was for the benefit of the entire village. The defendants first set made an application in October 1963 to the S.D.M. for the removal of the bandh under Section 133 of the Cr. P. C. It was wrongly alleged in the application that the defendants second set had raised the bandh. The Tehsildar went on the spot on 6-10-1963 and he got the bandh opened at one point and through a channel got the water off in the eastern gaddha. Thereafter the file of the S.D.M. was closed on 1-7-1964. The plaintiffs contended that the orders and acts of the S.D.M. and the Tehsildar under Section 133, Cr. P. C, were all illegal, unjustified and unwarranted. They had no right to interfere with the bandh which had not been constructed by the defendants second set but had been constructed by the plaintiffs on their own land and from which there was no injury to others. The defendants second set were impleaded because they were the parties in the criminal court even though they were really not concerned with the bandh. The Gaon Samaj was also impleaded as it was interested in the flow of water. The suit bad to be filed because of the illegal orders which were passed by the S.D.M. and the Tahsildar in the case under Section 133, Cr. P. C. The suit was contested by the defendants first set alone and proceeded ex parte against others,. The contesting defendants denied that the plaintiffs were the bhumidhars of shikmi plot No. 1 and they denied the alleged compromise in the revenue case on the basis of which the plaintiffs claimed to have acquired the plot. It was also denied that the bandh was 16 or 17 years old as claimed by the plaintiff and further it was disputed that it was raised by the plaintiffs. The true fact was, according to the contesting defendants, trial the bandh was raised for the first time in 1963 by the defendants second set to harm and injure tine interest of the defendants first set. When the defendants second set lost in the criminal court under Section 133, Cr. P. C. they set up the plaintiffs to file the instant suit against the contesting defendants. It was claimed that the bandh served no useful purpose for the plaintiffs but it did cause injury to the land of the contesting defendants. The inhabitants of the village had given no consent for the disputed bandh. It was further alleged that when there was no bandh, water from the western Tal used to overflow in the rainy season through the shikmi plot No. 1 and would pass to Garha which was just to the east of the village abadi. Certain other defences were also taken which it is not necessary to notice in the instant appeal as no point has been raised on their basis. The trial court decreed the suit and granted the permanent injunction restraining the defendants from causing interference in the erection and maintenance of the bandh in the shikmi plot No. 1 of the plaintiffs. The trial court found that the shikmi plot No. 1 was the bhumidhari of the plaintiffs. It was observed:

(2.) IN Sarju Prasad v. Mahadeo Prasad (AIR 1932 All 573) the head note is as follows:

(3.) IN my opinion 1969 All LJ 169 has no relevance to the facts of the case.